Ontario court rejects validity of $83-million Purported Will

What happens when someone leaves a typewritten, signed, but unwitnessed will under suspicious circumstances? In Bayliss v Burnham, the Ontario Superior Court of Justice had an opportunity to comment on a bizarre scenario. The case highlights a number of important issues, including the proper execution of wills, the common law doctrine of suspicious circumstances, and testamentary knowledge and approval. The court also took the opportunity to discuss the legislative scheme surrounding testamentary matters of Indigenous people holding status under the Indian Act, recognizing its purported aims and paternalistic nature.

Background and Facts

Kenneth Ryan Hill (Mr. Hill) was an Indigenous self-made millionaire who had nine children with eight different mothers. On January 18, 2021, Mr. Hill passed away from natural causes, leaving a signed, but unwitnessed, typed document dated September 10, 2020 (the Purported Will).

Prior to his passing, Mr. Hill had given his friend and business partner, Jerry Montour (Mr. Montour), the Purported Will in an envelope and told Mr. Montour, “If anything ever happens to me, give this to my lawyer.” However, there were no witnesses to this conversation, and Mr. Montour claimed that he did not know what was inside the envelope.

At the time of Mr. Hill’s death, his estate was worth an estimated $83 million, consisting of his shares in Grand River Enterprises (GRE), real and personal property, including boats, vehicles and bank accounts in Canada, the United States, and the Bahamas, and his on-reserve real property.

When Mr. Hill passed away, Mr. Montour stated that he had no knowledge of a will having been made, however, he remembered being given an envelope. It took Mr. Montour a number of weeks to locate the envelope, which he opened, read the top half of the document placed inside, put the document back in the envelope, and later delivered it to Mr. Hill’s lawyer. 

The Purported Will named Mr. Hill’s son, Ryan Edward Dalton Burnham (Mr. Burnham), as the executor of his estate. The Purported Will left Mr. Hill’s interest in GRE, which was worth approximately $38 million to Mr. Burnham, and left $5 million each to five of his children, $3 million to one of his children, and nothing to his remaining two children.

Mr. Hill’s children challenged the validity of the Purported Will, asserting that Mr. Hill did not sign it, nor did he sufficiently know of, or approve its contents.

The Legal Issues

The court was tasked with determining several important issues. The first question was whether the Purported Will was even executed by Mr. Hill pursuant to the Indian Act, Ontario’s Succession Law Reform Act (SLRA), or common law. Next, the court needed to determine whether the Purported Will was made under suspicious circumstances, and if Mr. Hill had proper knowledge of and approved its contents. Additionally, the court raised the issue of whether it had the jurisdiction to apply the common law to a will made by an individual subject to the Indian Act, such as Mr. Hill.

Testamentary Matters and the Indian Act

Testamentary matters of Indigenous individuals with status under the Indian Act are governed by its provisions and the Indian Estates Regulation. This legislative scheme is purported to preserve reserve lands, but is also seen as paternalistic and inconsistent with the modern policies of reconciliation and Indigenous self-governance.

Under the Indian Act, the Minister of Indigenous Services (Minister) is responsible for the probate of a will and other testamentary matters. Under the legislative scheme, the Minister has discretion to approve a will or declare it void. The Minister may exercise their discretion to declare a will void under a number of circumstances, including duress or undue influence, lack of testamentary capacity, the imposition of hardship, the disposal of reserve lands in a manner contrary to the interest of the band or the Indian Act, or where terms of the will are vague, uncertain or capricious.

In Ontario, the SLRA provides the formal requirements for making a valid will. The SLRA requires that a valid will be in writing, and dictates that execution is valid where a will is signed by the testator, the testator makes or acknowledges the signature in the presence of two or more witnesses, and that the two or more witnesses sign the will in the presence of the testator. Additionally, the SLRA allows a valid holograph will to be made and executed by the testator’s own handwriting and signature, without the need for witnesses.

These provisions are generally consistent with The Wills Act (Manitoba).  

Notably, the Minister may accept a will as valid under the Indian Act, whether or not it conforms with the requirements of provincial law. The Minister is to determine whether the will is in writing, signed, indicates the testator’s wishes or intentions, and disposes of property on death. These requirements are notably less stringent than those under the SLRA. However, both the Indian Act and the Indian Estates Regulation are silent as to whether an electronic or non-original (non-wet ink) signature is acceptable.

Execution by Mr. Hill

The Purported Will did not contain Mr. Hill’s original signature, and forensic document experts could not conclusively determine whether Mr. Hill had naturally written it.

Those close to Mr. Hill testified that he did not use computers, and an examination of Mr. Hill’s devices by a third-party expert did not find any documents or user activity relevant to the Purported Will, nor did they find any discussions regarding the creation, signing, or modification of the Purported Will, or discussions with any estate lawyers.

The only evidence of Mr. Hill expressing his intention to draft a will came from a text message he sent in October 2019. Then, in October 2020, when Mr. Hill’s lawyer asked him about preparing a will once again, Mr. Hill told his lawyer that he had “taken care of it”.

At trial, a number of Mr. Hill’s children gave evidence as to his intentions. The children testified that Mr. Hill loved them all and would have split his assets equally amongst them, and therefore, the bequests made in the Purported Will were inconsistent with Mr. Hill’s intentions. However, the court determined that this evidence was irrelevant.

Ultimately, the court noted that the onus to establish whether the will had been properly signed was not on the party challenging the will (Mr. Hill’s children), but on the Respondent (Mr. Burnham in his capacity as named Estate Trustee). The court could not find that the Respondent had proven that Mr. Hill signed the Purported Will, and therefore, the Purported Will could not be accepted under the Indian Act.  

Suspicious Circumstances

Even though the court did not find that the Purported Will had been signed by Mr. Hill, the judge addressed the remaining issues anyway.

The court considered the common law doctrine of suspicious circumstances, which may be raised by circumstances surrounding the preparation of the will, calling into question the testator’s capacity, or tending to show that the testator was overcome by coercion or fraud.

Where there is proof that the will was duly executed under the required formalities, and after having been read and understood by the testator, there is a presumption that the testator knew and approved the will’s contents. This presumption can be rebutted by suspicious circumstances as described above, and then knowledge and approval must be proven by the Respondent, on the balance of probabilities.

In this case, there was no evidence regarding the creation and execution of the Purported Will. The court also emphasized the suspicious circumstances surrounding Mr. Montour’s initial receipt and later discovery of the Purported Will. Given this information, or lack thereof, the court determined that there were suspicious circumstances surrounding the execution of the Purported Will. Therefore, if the court had found the Purported Will to be validly executed, the onus would shift back to the Respondent to prove that Mr. Hill knew and approved its contents.

Knowledge and Approval

The court looked at Mr. Hill’s knowledge and approval of the Purported Will. The onus to establish knowledge and approval rests with the Respondent where the formal execution requirements are not met. The test is whether the testator fully understood what was in the will and whether the will reflected the testator’s intentions, as written.

In this case, the court found that there was no evidence that Mr. Hill knew of or approved the contents of the Purported Will as there was no evidence as to the circumstances in which it was drafted or signed. The court did not consider Mr. Hill’s assertion that he had “taken care of it” as evidence that Mr. Hill knew of and approved the Purported Will.

Finally, the court noted that the common law principles related to the validity of a will, including the doctrine of suspicious circumstances and the knowledge and approval requirements, could apply to determine the validity of any will falling under the jurisdiction of the Indian Act, including in this case.

Decision

Ultimately, the court concluded that the Purported Will could not be accepted as Mr. Hill’s under the Indian Act, as there was no evidence that Mr. Hill signed it. Additionally, the court determined that the Purported Will was not valid at common law on the grounds that there was no evidence that Mr. Hill knew of and approved its contents, and suspicious circumstances were present.

Fillmore Riley's Wills, Estates & Trust Practice

Estate litigation, whether involving Wills or Powers of Attorney, can be financially and emotionally exhausting for family members. This area of the law has been in development for hundreds of years, yet each case is unique, and each dispute brings novel challenges. We are here to assist you in navigating your matter.